Opinion
No. 33338.
April 3, 1939. Suggestion of Error Overruled May 22, 1939.
1. EXECUTORS AND ADMINISTRATORS.
A letter, wherein executrix agreed to pay plaintiff as commission for services a stated sum, payable partly out of first month's rent and in installments on first of each year during term, if a lease was made with a certain company on building belonging to estate with respect to which plaintiff had been negotiating, was a straight contract to pay plaintiff for services for past negotiations if a lease was made and first month's rent was paid.
2. EXECUTORS AND ADMINISTRATORS.
Where plaintiff unsuccessfully sued for commission for services rendered in procuring lease for decedent, and all facts were known to both parties, executrix who signed letter promising to pay commission without authority of law or of chancery court became personally liable therefor.
3. EXECUTORS AND ADMINISTRATORS.
Where executrix, with knowledge of all the facts, undertook to compromise a claim against estate for commission for services rendered in procuring lease, there was sufficient consideration for executrix' promise to pay commission.
4. EXECUTORS AND ADMINISTRATORS.
A contract, whereby executrix promised to pay commission for services rendered in negotiating for lease on building owned by estate, was not unilateral, and promisee was not barred from recovering thereon on ground that he obligated himself to perform services in the future.
SMITH, C.J., and GRIFFITH, J., dissenting.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Stevens Stevens and Barron C. Ricketts, both of Jackson, for appellant.
The court erred in overruling the general demurrer to the plaintiff's declaration.
The common law rule was that a contract made by an executor or administrator was the personal contract of the representative and not binding upon the estate. This common law rule was abolished in Mississippi by Article 119, Chapter 60, Revised Code of Mississippi of 1857, now appearing at Sections 1711 and 1712 of Mississippi Code 1930, authorizing an executor or administrator to sue or be sued upon any action or suit which shall accrue during the course of administration.
Bowen v. Bonner, 45 Miss. 10.
The declaration shows on its face that the defendant contracted as executrix with respect to a matter authorized by law, Section 1708, Code 1930, providing for a lease of lands of a deceased person. The declaration did not charge any fraud, deceit or concealment by the defendant respecting any matter of law or fact, and since the defendant contracted in her capacity as executrix, she is only liable to be sued as such.
McCarty v. Love, 145 Miss. 330, 110 So. 795; Merchants and Planters Packet Co. v. Streuby, 91 Miss. 211, 44 So. 791.
It is a well settled rule of law in this state that in construing a contract the entire language of the contract must be considered, and, if possible, given effect.
Citizens Lbr. Co. v. Netterville, 102 So. 178, 137 Miss. 310; Miss. Power Light Co. v. A.E. Kusterer Co., 125 So. 429, 156 Miss. 222.
It is also good law in Mississippi that in interpreting a contract the court should, if possible, construe it so that all provisions of the contract may be given effect and so that a legal and a possible construction may be placed upon it as opposed to an illegal and impossible construction.
Harris v. Townsend, 58 So. 529, 101 Miss. 590; Citizens Bank v. Frazier, 127 So. 716, 157 Miss. 298.
The court erred in overruling the defendant's motion to strike the plaintiff's counter-notice.
The plaintiff's counter-notice corresponds to a replication at common law, and it is well settled in Mississippi that a plaintiff may not, in his replication or subsequent pleadings, abandon the ground alleged in his declaration as the basis of his suit, and shift to a new ground for recovery, either as to matters of law or fact.
49 C.J. 342, par. 420; Porterfield v. Butler, 47 Miss. 167; Crim v. Drake, 98 So. 349; McGavock v. Whitfield, 45 Miss. 459.
The court erred in overruling the defendant's motion to require the plaintiff to make his declaration more specific and for a bill of particulars.
Sections 554 and 555, Code of 1930; Jones v. Millsaps, 71 Miss. 10, 14 So. 440; Pountaine v. Fletcher, 158 Miss. 720, 126 So. 471; Sherwin-Williams Co. v. Feld Brothers Co., 139 Miss. 21, 103 So. 795; Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 228.
The court erred in sustaining appellee's objection to the introduction in evidence of the record of proceedings in the case of J.A. Hodge, plaintiff v. A.F. Daniel, et al., defendants.
It was the defendant's position throughout the trial of this case that the contractual relations between the plaintiff and A.F. Daniel during the latter's lifetime, and the services rendered by the plaintiff to A.F. Daniel, were incompetent, irrelevant and immaterial to any issue presented on the trial of this case, because the plaintiff did not earn any commission which became due him during Daniel's lifetime, the suit was based upon Mrs. Daniel's letter written after her husband's death, and the only consideration which would support the agreement to pay the commission as provided in the letter was the plaintiff's services to be rendered in securing, negotiating and completing a lease with Sears, Roebuck and Company, which service the plaintiff was never able to perform.
The court erred in overruling the defendant's objections to the plaintiff's evidence of correspondence between him and Sears, Roebuck, services rendered by plaintiff to A.F. Daniel, and negotiations conducted by plaintiff for A.F. Daniel, all in the latter's lifetime.
12 Am. Jur., par. 93, page 586; Sykes v. Moore, 115 Miss. 508, 76 So. 538; Owen Tie Co. v. Bank of Woodland, 136 Miss. 114, 101 So. 292.
The court erred in granting the plaintiff a peremptory instruction, in refusing each and every instruction requested by the defendant, and in entering judgment against the defendant in favor of the plaintiff.
The most that can be found in the record as to the understanding of the parties is that the defendant understood that she would pay the plaintiff the commission agreed upon if he negotiated the lease, while the plaintiff contends that he was to get his commission for services rendered prior to the execution of the letter, and for services in procuring the lease after the execution of the letter even though he was unsuccessful in procuring a lease. There is to this extent a conflict between the testimony of the plaintiff and the defendant. The defendant contends that the evidence of the plaintiff that he was to be paid a commission for services both before and after the execution of the letter, although the unsuccessful agent, did not afford any right in the plaintiff to recover against the defendant, because the contract was purely unilateral, and the defendant had the right to revoke the same at any time, and the defendant did revoke the agency by procuring a lease through other means. The plaintiff and the learned trial judge below appeared to take the view that the defendant had no right to revoke the agency, that it was exclusive, and that the defendant's right to revoke it was in some way lost by a separate consideration adequate to support an agreement to pay the plaintiff the commission whether he secured the lease or not.
This result is in direct conflict with the decisions of the Mississippi Supreme Court, holding that an agreement to pay a real estate agent a commission for services, whether the agent rendered services in closing the sale or whether the principal did, is unilateral, lacks mutuality, and is revocable at will, subject to the right of the agent in a proper case to recover the value of services rendered upon the strength of the agreement.
Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233; Jayne v. Drake, 41 So. 372; Taylor v. Barbour, 90 Miss. 888, 44 So. 988, 122 A.S.R. 328; Swain v. Pitts, 120 Miss. 578, 82 So. 305; Tonkel v. Moore, 162 Miss. 83, 137 So. 189.
The plaintiff appeared to contend throughout the trial that he was entitled to his commission because of the action of the defendant in negotiating through another agent. The declaration does not have any ellegation in it that after the plaintiff's services had been rendered, the defendant wrongfully negotiated with others in order to defeat his commission. The case of Swain v. Pitts, 120 Miss. 578, was brought on the theory that the owner had negotiated with the purchaser produced by the agent, in an effort to avoid the commission, but the court found otherwise. There is no evidence in this record that the defendant was interested in anything other than securing a lease for her son and daughter. If the plaintiff had been able to perform his agreement to negotiate the lease, the interested parties would have been able to save a material amount by way of commission, the difference between $1330.00 and $2500.00. The fact itself that the parties were willing to pay almost double the commission agreed upon with the plaintiff is an indication that they were not trying to avoid the payment of a reasonable commission.
Stanley v. Grimes, 158 Miss. 1, 128 So. 324; 2 A.L.R., Restatement of Agency, par. 448.
Stokes V. Robertson, Sr., Stokes V. Robertson, Jr., and Chas. S. Campbell, all of Jackson, for appellee.
Appellant's Point 1 presents the proposition that appellant did not become personally liable by signing the agreement of June 13, 1935, as executrix without authority of law or of the Chancery Court. Our answer to this proposition is: if an executrix or administratrix signs a contract or other promise to pay a debt or a probable claim against the estate of the deceased person without authority of law or of the Chancery Court, she thereby becomes personally liable therefor, and appellant's proposition is not supported by the Mississippi cases which pass directly on this question.
Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Short v. Porter, 44 Miss. 533; Woods v. Ridley, 27 Miss. 119; Robinson v. Lane, 14 S. M. 161; Yerger v. Foote, 48 Miss. 66; Clopton v. Gholson, 53 Miss. 466.
Appellant and not the court below was inconsistent and the court correctly overruled appellant's motion to strike appellee's counter-notice under the general issue after having sustained her motion to strike certain parts of the declaration relating to the services performed by appellee prior to the signing of the agreement of June 13, 1935, as constituting a sufficient consideration for the promise in said agreement to pay his commission because the agreement made out a prima facie case in favor of appellant and the consideration or lack of consideration therefor was an affirmative defense which appellee was not required to allege or prove, but which appellant was required to allege and did allege in her notice under the general issue and required to prove as an affirmative defense.
Boone v. Boone, 58 Miss. 820; Stanley v. Sumrall, 147 So. 786, 167 Miss. 714.
The declaration clearly and specifically alleged a cause of action for personal liability against appellant because she had signed the agreement as executrix without authority of law or of the Chancery Court and appellee was not required to state all of his evidence in the declaration and the motion for a bill of particulars was, therefore, properly overruled.
Sec. 521, Code of 1930.
Appellant cites no authority whatever in support of her proposition that the record of the proceedings in the case of J.A. Hodge v. A.F. Daniel et al., in the Chancery Court was competent or relevant and our answer is that it is immaterial whether or not such proceedings showed a cause of action against appellant because the claim of appellee against the decedent A.F. Daniel constituted a sufficient consideration for appellant's execution of the agreement of June 13, 1935.
By her Point 5, appellant presents the proposition that the services rendered by appellee for A.F. Daniel prior to the date of the agreement sued on was not a sufficient consideration to support such agreement and that the evidence of such services was incompetent and not admissible. Our answer to this proposition is that the services rendered by appellee in negotiating for a lease on the Daniel Building with Sears, Roebuck and Company prior to June 13, 1935, whether rendered for A.F. Daniel or for appellant or both constituted a full and complete consideration for the agreement of June 13, 1935, and that no further consideration was necessary and no future services required of the appellee under such agreement.
Boone v. Boone, 58 Miss. 820; Stanley v. Sumrall, 147 So. 786, 167 Miss. 714; 1 C.J.S. 713.
By her Point 6, appellant repeats the proposition that the prior services of appellee did not constitute a sufficient consideration, and presents the additional proposition that appellee did not render sufficient services subsequent to the date of the agreement on June 13, 1935, to constitute a consideration or to entitle him to recover the commission absolutely promised him by appellant upon the happening of only one contingency, to-wit: the execution of a lease of the Daniel Building to Sears, Roebuck and Company.
Our answer to these joint propositions combined in appellant's Point 6 is that the prior services of appellee constituted a sufficient and complete consideration, and also that the future services rendered by appellee also constituted a separate, sufficient and complete consideration. If this court should construe such agreement as requiring by implication any future services of the appellee in connection with leasing the Daniel Building to Sears, Roebuck and Company.
Sunflower Bank v. Pitts, 66 So. 810, 108 Miss. 380; Skermatti Realty Co. v. Devitt, 111 So. 302, 145 Miss. 815; Roell v. Offutt, 103 So. 239, 138 Miss. 599; Restatement, Law of Agency, 1050 and 1054, sections 448, 449; Bank v. Mitchell, 162 Miss. 527, 139 So. 316; Reynolds v. Alexander, 146 So. 305, 164 Miss. 860.
Argued orally by Barron C. Ricketts, for appellant, and by Stokes V. Robertson and Chas. S. Campbell, for appellee.
Appellee Hodge sued Mrs. Daniel seeking to recover $250 on a certain letter exhibited with the declaration, and also there was set out in the declaration specific allegations as to details of a real estate contract existing between A.F. Daniel, deceased husband of the appellant, and the details of the manner in which he had accomplished the execution and tender of a lease contract for ten years with A.F. Daniel, which the latter had not signed. The appellant, Mrs. Daniel, appeared and filed a plea of general issue and a notice thereunder, the effect of which was that there was no consideration for a letter upon which the suit was based. To which, appellee filed a counter notice, in which he set up in substance the same matters as to the lease contract with the deceased husband, A.F. Daniel, and Mrs. Lizzie M. Daniel, as well as acts subsequent to the execution of the letter, the basis of this suit.
Without going into details, the substantial effect of the evidence is as follows: The letter upon which the suit was based is in these words:
"Jackson, Miss., June 13, 1935.
"Mr. J.A. Hodge, "Jackson, Mississippi
"Dear Sir:
"If a lease is made with Sears, Roebuck Company on the three story brick building owned by the A.F. Daniel Estate, which you have been negotiating with them on for us, I agree to pay you as commission for said services a total of $1330.00, payable as follows: $250.00 out of the first month's rent and $120.00 on the first of each year thereafter during the term of this lease.
"Respectfully "(Signed) Mrs. Lizzie M. Daniel, "Executrix"
On a trial of the case, in addition to the letter, it was agreed that Sears, Roebuck Company entered into a lease with the owners thereof, as shown in Book 296, at Page 410 and pages, immediately following of the Land Deed Records of the First Judicial District of Hinds County, Mississippi, which record is now introduced in evidence as Exhibit "B" to the declaration, which purported to be a copy of the old lease and is a substantial copy thereof, and that Mrs. L.M. Daniels signed her name as "Mrs. L.M. Daniels, Executrix," to the letter of June 13, 1935. Whereupon, the plaintiff rested. The appellant made a motion to exclude the evidence which was overruled by the court, the point being that no consideration was shown. In overruling the motion, the court held that a prima facie case had been made.
Thereupon, appellant offered her evidence, Hodge as an adverse witness, and her own testimony, and that of Osment, a representative of the Engle Realty Company, when the appellant rested. The appellee then testified as a witness. The undisputable testimony is about as follows: That prior to the date of this letter in 1934, Mr. and Mrs. Daniel had employed Hodge to effect a ten year lease of the building referred to in the letter; and that on the day Mrs. Daniel signed the letter in controversy, she read the letter over and she said "not careful enough." She undertook to testify that in the conversation prior to the execution by her of the letter, that Hodge had represented to her that the contract was to be for future services to be rendered a lease executed by him as real estate agent of the property of Sears, Roebuck Company.
On the same day the letter was signed, Hodge wrote a letter to Sears, Roebuck Company reopening negotiations for a lease of the building, invited him (Wellbank, Manager Real Estate Department, Chicago, Illinois) to come to Jackson, and the letter contains this language: "Mrs. Daniel agrees to pay me the small rental commission which I have been claiming, if your company leases the building." She read this letter and did not contend that she misunderstood it. On direct examination, she denied seeing any other letter except one written by Sears, Roebuck Company to Hodge, in which they signified that they no longer had any interest in leasing the property; but on cross examination when eleven letters in succession were presented to her written by Hodge to Sears, Roebuck Company, her testimony was that she did not remember whether she saw these letters or not.
Osment (Secretary of the Engle Realty Company, Birmingham, Alabama) testified that in the fall, about the first of October, 1936, a real estate agent of Sears, Roebuck Company approached him in Birmingham and suggested that they were interested in the Daniel Building in Jackson. Whereupon, Osment came to Jackson, interviewed Mrs. Daniel, finally securing a verbal contract from her to lease the building, and entered into negotiations with Sears, Roebuck Company, which finally terminated in the lease of the building for ten years for a substantial sum per annum, and collected his commissions therefor. It appears from his testimony that the negotiations with Sears, Roebuck Company were begun about the time the letter was written to Hodge signifying that Sears, Roebuck Company no longer was interested in the property.
On Hodge's testimony in his own behalf, he testified that he had been employed by A.F. Daniel in his lifetime, in 1934, and after much competition and negotiation with Sears, Roebuck Company had procured from them a lease for ten years for this building, after corrections by both parties, it and Daniel, he presented the contract with Sears, Roebuck Company's signature thereto and Daniel refused to execute it without assigning any objection to the contract tendered. In other words, that Daniel, after he had negotiated and completed the lease with Sears, Roebuck Company, capriciously refused to execute it. The contract is a very lengthy one, and there are many details involving specifications as to remodeling the building to adapt it to the uses of the lessee, Sears, Roebuck Company. Hodge admitted that he had instituted a proceeding in the chancery court against A.F. Daniel and his wife, and other parties, in which he sought to recover his commission. That a demurrer was sustained to his bill, and it was dismissed in the chancery court. He testified at length as to the skill, trouble, persistence and diligence exercised by him in obtaining the signature of Sears, Roebuck Company to the proposed lease.
He further testified that he submitted to Mrs. Daniel all the correspondence between him and Sears, Roebuck Company from May 13, 1935, to the latter part of May, 1936, at about which time the lease had been effected, with the exception of necessary court proceedings, and the time required to finally have the lease executed.
There was much pleading, and the appellant in the court below moved to strike all the averments of the declaration as to the service rendered by Hodge as real estate agent in accomplishing the lease by Sears, Roebuck Company, which was stricken from the declaration, the court holding that the letter made out a prima facie case of consideration therefor.
When the appellant filed her notice under the plea of the general issue to the effect that there was no consideration for the contract, thereupon in a counter notice appellee filed his detailed statement of the negotiations between him, Daniel, and Sears, Roebuck Company in effecting the old lease, and a motion was made by the appellant to strike the counter notice from the files, which we are advised was overruled by the court.
The appellant offered in evidence the record of the proceedings in the chancery court between Hodge and Daniel and wife, which the court excluded, in effect saying that there was no plea of res adjudicata, therefore these pleadings were not competent.
First, it is insisted by appellant, Mrs. Daniel, that the letter, which is the basis of the suit, did not in terms set forth a consideration. The letter is short and not hard to construe. It was a straight contract, as we view it, taking all of it into consideration and each word, to pay Hodge for his services for the past negotiations in the amount sued for if a lease was made by Mrs. Daniel to Sears, Roebuck Company and the first month's rent paid by the lessees. We think the instrument so declares in the use of the language: "which you have been negotiating with them on for us, I agree to pay you as commission for said services." We are of opinion that the only contingency set forth in the contract, which was to happen in the future, was the lease of the building to Sears, Roebuck Company. It will be observed that the letter was addressed to Hodge and begins with the words "If a lease, etc." If it had begun "If you," referring to Hodge, then, it would have been a contract for future services, but the amount of the services and the value of it theretofore rendered was admitted by the terms of this letter, which we think are very plain and not equivocal.
It is however clear from the evidence in this record that after Mrs. Daniel had interviewed the agent of Sears, Roebuck Company, who had promised to call on Hodge with reference thereto, that Mrs. Daniel never notified Hodge that she was negotiating with another real estate agency; nor did Hodge know about it until about the time the lease of the building was completed by such other real estate agency; and that he did in every way possible undertake to reintroduce Sears, Roebuck Company to her as a probable lessee and assist her in effecting the lease, and although Sears, Roebuck Company notified him that they were no longer interested, afterwards they wrote him as late as May, 1936, advising him that the agent would come to Jackson and interview him relative thereto. The other real estate agency did not know that Hodge was interested in the matter.
On the oral testimony of Hodge, he made a perfect case against A.F. Daniel and his estate for the stipulated amount for his services. He brought the parties together, he completed the contract as they desired, and Sears, Roebuck Company were ready, willing and able, and proffered the contract, which Daniel, for his own good reasons, refused to execute. According to Hodge's testimony, all the terms and conditions of this contract that Daniel wanted therein were present in the proffered contract. Mrs. Daniel had contended that it was necessary for her to sign the contract, and according to Hodge's testimony, which was undisputed, she stated that her husband should have signed it, that he was not at himself, and that she would have signed it.
She was anxious at the time the letter was written to Hodge by her to secure Sears, Roebuck Company as a lessee of this building. It appears that she did not own it, and it may be inferred from the testimony that in some way the building was devised to the two minor children of A.F. Daniel. The will was not introduced.
Mrs. Daniel signed the contract as executrix to pay the debt, which was fully established by the testimony of Hodge. It is agreed and admitted that she had no authority from the chancery court to lease the building or to acknowledge the claim. Where the parties had engaged in litigation, where all the facts were known to both parties, and where the evidence establishes without dispute that Hodge had earned his commission in his efforts to lease the building for A.F. Daniel, the decedent, to Sears, Roebuck Company, it is the settled law in this State that if an executrix or administratrix of an estate signs a contract or promises to pay a debt held against the estate of a deceased person without authority of law or of the chancery court, she thereby becomes personally liable therefor. See Orgill Brothers v. Perry, 157 Miss. 543, 128 So. 755; Clopton, Adm'r, v. Gholson, 53 Miss. 466; Yerger v. Foote, 48 Miss. 62; Woods v. Ridley, 27 Miss. 119. Even if the claim can be said to be a doubtful one, under the facts of this case the executrix herein knew better the conditions which existed in the former effort to lease by Hodge than any other living person. She was not authorized to execute the paper, which was nothing more than a promise to pay the debt upon a certain contingency, which contingency happened. There can be no distinction between a note signed by the decedent and any other debt he contracted in his lifetime.
Even though it may be said that this claim was a doubtful one, still she undertook to settle and compromise it as executrix, with knowledge of all the facts, and having so thus done, there was sufficient consideration even if it be said to be a doubtful claim, and in the state of this record it is not doubtful. See Boone v. Boone, 58 Miss. 820; Stanley v. Sumrall, 167 Miss. 714, 147 So. 786.
But, it is said that this contract is unilateral, and certainly Hodge obligated himself to perform services in the future. We do not think there is any merit in this contention, in view of the conclusion we have reached upon the construction of the letter or contract itself, and the undisputed testimony of Hodge as to his existing claim which he might have probated and had sustained and allowed by the court on that evidence without any reasonable doubt.
As to the pleadings in this case, the action of the court was only to require orderly pleadings, and the case has been tried upon pleadings which presented the issues to the court, and we find no error therein.
As to the exclusion of the record of former proceedings in the chancery court, wherein Hodge filed a bill against Daniel and wife, we are of opinion that unless a plea of res adjudicata had been interposed this record would serve only to confuse this record and could serve no purpose on the issues presented to the court. Indeed, counsel for appellant do not cite any authority, and conceded there was no question as to res adjudicata involved in the case.
At the conclusion of the evidence, both appellant and appellee submitted at the same time requests for a peremptory instruction. The court granted the appellee a peremptory instruction, and overruled this request of the appellant. Judgment was accordingly entered for Hodge.
We find no error in this record.
Affirmed.
Smith, C.J., and Griffith, J., dissent.